Panjumal Daulatram (Firm) vs Sakhi Gopal Thakurdin Agrawal

A.P. Sen, J.

Points of law urged in the appeal may be shortly stated. Relying on the kirayanama dated 1-11-1955, it is urged that the demised premises having been let for a composite purpose, i. e., for non-residential as well as residential purposes, in the absence of a specific provision made in that behalf in section 12 (1) of the Madhya Pradesh Accommodation Control Act, 1961. the plaintiff''s suit for ejectment based on his composite need, is not maintainable. The demised premises is situate in the heart of the business locality in Satna town. The defendant is a partnership firm carrying on cloth business from the ground floor, and the first floor is used for residential purposes. The kirayanama, Ex. P-1, shows the creation of a composite lease on a monthly rent of Rs. 250. It is urged that the contract of tenancy is one and indivisible, and in the absence of any statutory provision to that effect, it is not open to the Court to divide it into two contracts one of letting for non-residential purposes, and the other for residential purposes, and to grant relief under clauses (e) or (f) of sub-section (1) of section 12 of the Act. It is said that unlike the Delhi and Ajmer Rent Control Act, 1952, there is no provision made for eviction of tenants from residential-cwm-non-residential. This, it is said, a lacuna in the Act. The submission is based on the opening words of section 12 (1)of the Act, which read as follows:--

Restriction on eviction of tenants (1).--Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:--

Emphasis is laid on the non-obstante clause, "Notwithstanding anything to the contrary contained in any other law or contract", and the word "except", for the submission that no suit for eviction of a tenant from any accommodation as defined in section 2 (a) can be entertained unless it is based on one or more of the grounds mentioned therein. The word "except" must, in the context, mean--''on no other grounds.''

Reliance is placed on the decisions of the Supreme Court in Dr. Gopal Dass Verma Vs. Dr. S.K. Bhardwaj and Another, and S. Sanyal Vs. Gian Chand, in support of the contention.

The decisions of their Lordships are an authority for the proposition that, in the absence of a specific provision in the statute, the Court has no power to break up the unity of the contract of letting and attribute incidents and obligations to a part of the subject-matter of the contract which are not applicable to the rest. They proceed on the principle that the contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect, it is not open to the Court to divide it into two contracts one of letting for residential purposes, and the other for non-residential purposes, and to grant relief accordingly.

In Dr. Gopal Dass Verma''s case (supra), the premises in dispute were originally let for residential purposes; but subsequent to the letting, they were, with the consent of the landlord, used both for residential and non-residential purposes. The premises, therefore, by their user ceased to be premises let for residential purpose alone. In Miss S. Sanyal''s case (supra), there was a composite letting, i. e., for purposes non-residsntial as well as residential. In both the cases, the respective landlords brought suits for ejectment u/s 13 (1) (e) of the Delhi and Ajmer Rent Control Act, 1952, on the ground that they required the premises bona fide for their own residence. In Dr. Gopal Dass Verma''s case (supra), their Lordships held that the premises in that case had, by their user ceased, because of the consent of the landlord, to be premises let for residential purposes alone and since that were so, the Court had no jurisdiction to decree ejectment u/s 13 (1) (e) of the Act.

In Miss. S. Sanyal''s case (supra), the High Court held that where there is a composite letting, it was open to the Court to disintegrate the contract of tenancy, and if the landlord proves his case of bona fide requirement for his own occupation, to pass a decree in ejectment limited to that part which is being used by the tenant for residential purposes. Their Lordships held that the High Court was in error as the contract of tenancy being a single and indivisible contract, the Court had no jurisdiction to break up the unity of the contract of letting, in the absence of any statutory provision in that behalf, and grant relief u/s 13 (1) (e) of the Delhi and Ajmer Rent Control Act, 1952. I fail to see how the principle enunciated in both these cases, applies to the facts and circumstances of the present case.

In the interpretation of statutes, the Courts decline to consider other statutes proceeding on different lines and including different provisions, or judicial decisions thereon. [See, Craies on Statutes, 6th Edn. p. 133]. The two decisions of their Lordships turn on the scheme of the Delhi and Ajmer Rent Control Act, 1952. The word "premises", as defined in section 2 (g) of that Act, contemplates three categories cf premises depending upon the nature of user, namely, (i) purely residential, (ii) purely non-residential, and (iii) residential-cuw-non-residential. The Madhya Pradesh Accommodation Control Act, 1961, however, by clauses (e) and (f) of sub-section (1) of section 12, recognises only two categories of buildings-- (i) residential and (ii) non-residential. There is no third category, i. e., both residential and non-residential. The two Acts differ widely in their scope; and even when they happen to deal with the same subject, their wording is not the same. The decisions are, therefore, not applicable for the interpretation of the provisions of the Madhya Pradesh Accommodation Control Act, 1961.

The true effect and meaning of the language of section 12 (1) of the Act is that no suit for eviction of a tenant from an ''accommodation'', as defined in section 2 (a) of the Act, can be brought unless it is based on one or more of the grounds mentioned therein. The construction suggested on the opening words "Notwithstanding anything to the contrary contained in any other law or contract", and the word ''except'' appearing therein, is the only construction possible. The Act, by the non obstante clause, gives to section 12 (1) an overriding effect over all other laws including the Transfer of Property Act. There can also be no contracting out by the tenant of his statutory protection. The Act enjoins that any contract between the parties, if it is contrary to the provisions of the Act, will be inoperative, and the Court will not enforce it. The words "no suit shall be filed" mean, on the one hand, that the landlord is prohibited from filing a suit for eviction against a tenant unless it is based on one or more of the grounds mentioned in section 12 (1), and on the other, if he has filed a suit, i. e., without its being based on any of the grounds specified therein, the Court shall not entertain such a suit and dismiss it as disclosing no cause of action. The existence of one or more of the grounds mentioned in section 12 (1)of the Act, therefore, constitutes a necessary part of the cause of action in a suit for eviction of a tenant from an accommodation.

In clauses (a) to (p) of sub-section (1) of section 12of the Act, the Legislature has specified the various grounds upon which a suit for eviction of a tenant from an accommodation can be based. The Act, with respect to the bona fide requirement of the landlord, has put accommodations into two categories, (a) residential and (b) non-residential. There is no third category viz., residential-cum-business. Clauses (e) and (f) make separate provisions for these two categories of accommodation. In case of accommodation let for residential purposes, the bona fide requirement of the landlord under clause (e) should be for residence. In case of accommodation let for non-residential purposes, his bona fide requirement under clause (f) should only be for non-residential purposes. Any need not in conformity with the purposes for which the accommodation was let, or inconsistent with its actual user, is, therefore, not a ''bona fide requirement'' for purposes of either of these clauses.

The absence of a provision relating to a composite premises viz., premises let for residential as well as non-residential purposes, does not necessarily mean that no suit can be filed by landlords for eviction of tenants from such premises. That would result in manifest absurdity. The Legislature cannot be attributed with the intention of leaving a hiatus, i. e., of placing a blanket ban against eviction of such tenants. As is manifest, the Act recognises only two categories of buildings, residential and non-residential. In view of the settled law, that the contract of tenancy being a single and indivisible contract, the Court has no power to break up the unity of the contract of letting and attribute incidents and obligations to a part of the subject-matter of the contract which is not applicable to the rest. The Court has, therefore, to determine as to which of the two purposes was the dominent purpose, the ther being subsidiary and ancillary to it. This depends on various factors, i. e. puv pose for which the accommodation was let, or its user, its constructional design, situation, amenities available, conveniences provided, etc.

In Moolchand Vs. Sheodutt Paliwal and Another, Singh J. states:

The question whether an accommodation is let for residential purposes or for non-residential purposes is a simple one when the contract of tenancy specifies the purpose of the tenancy. But the question becomes a vexed one when the lease, whether oral or written, is silent on that point. The expression "the accommodation let for residential purposes" as used in clause (e) of section 12 (1) and the expression "the accommodation let for non-residential purposes" as used in clause (f) of the same section prima facie refer to the purpose mentioned in the lease. But when a lease is created without any restriction as to purpose, the tenant is free to use it for any purpose and strictly speaking in such a case it is difficult to say that the letting is for any particular purpose. But if this view is taken, clauses (e) and (f) will be inapplicable to a case where tenancy is created without any express or implied limitation as to purpose and the landlord will not be able to claim possession of the accommodation even if he needs it for his own use. Such a result does not seem to have been intended by the Legislature. Therefore, even if the lease does not specify any purpose, its purpose has to be inferred by recourse to surrounding circumstances, such as the structural design of the accommodation, its location, the use to which it is put by the tenant etc. Another difficulty arises because of the fact that the Act creates only two categories of purpose viz. residential and non-residential. Therefore, if an accommodation is let or used for both residential and non-residential purposes, the Court has to decide as to what is the primary purpose for which the accommodation is let or used. If the primary purpose is residential the accommodation will be classified as residential even if it is also used for some non-residential purposes; and vice-versa.

I entirely agree with the view expressed by him. In the present case, the demised premises is situate in the market area of Satna Town. The ground floor of buildings there, it is said, is mainly used for carrying on business. The defendant is a partnership firm registered under the Partnership Act, and is doing business in cloth from the demised premises. Now, though the kirayanama, Ex. P-1, mentions that the premises was let for a composite purpose, the primary purpose undoubtedly was non-residential. This is clear from the testimony of Panjumal (D. W. 4), a partner of the defendant-firm, to the effect:--

The dorninent purpose of the lease was, therefore, non-residential, and the residential use of the first floor was merely incidential to it. The plaintiff, Sakhi Gopal, (P. W. 1) and his two brothers, Shrikrishna (P. W. 2) and Dr. Biharilal (P. W. 3), state that the plaintiff needs the ground-floor for starting a Medical Stores, and that the plaintiff being married, needs the first-floor for his residence. The plaintiff''s primary need is, therefore, the same, i.e., non-residential. The first point, therefore, fails.

The Courts below have concurrently found that the plaintiff has established that he bona fide requires the suit accommodation for starting a Medical Stores as also as residence for himself and for members of his family. That is a finding based on appreciation of evidence, and the finding is binding in second appeal. [See, Servate T.B. v. Nemichand 1966 M P L J 26 (S C) and Mattulal Vs. Radhe Lal, . The finding as to his "bona fide requirement'' was rightly not challenged before me.

No doubt, the burden of proving bona fide requirement for his business as well as residence, as also the fact that the plaintiff had no reasonably suitable accommodation of his own, lay upon the plaintiff. Whether in a given case that burden is discharged by the evidence on record, is again a question of fact. [See Sarvate T.B. v. Nemichand (supra)].

The conclusion that the Courts have reached is the only conclusion possible on the evidence on record, in the light of the circumstances appearing. The plaintiff is M. Sc. In 1966, after completing his studies, he returned to Satna where his brothers Shrikrishna (P. W. 2) and Dr. Biharilal (P. W. 3) reside. Dr. Biharilal and his wife are both practising there as doctors. His brothers wanted to settle him in life, and, therefore, the plaintiff started a Medical Stores in partnership with his brother Shrikrishna (P. W. 2) with Himanshu, minor son of Dr. Biharilal, admitted to the benefits of the partnership. In May, 1968, the plaintiff''s brothers got him married. Unfortunately, the business did not prosper and, therefore, the partnership was dissolved. The plaintiff, however, continued the Medical Stores as his separate business. The three brothers with their families were residing in the house of Shrikrishna but the accommodation was not sufficient for them. The plaintiff, therefore, shifted his residence from Satna to Nagod, which is a place 17 miles away, and from there he used to come daily to Satna, and look after the business. This the plaintiff found to be rather inconvenient. In November, 1968, he therefore, shifted his Medical Stores to Nagod. Now, he wants to shift from Nagod to Satna, and start his Medical Stores from the suit accommodation. In the circumstances, it cannot be said that the plaintiff''s need was a mere pretence. The Act was not meant to deprive the owner of the beneficial enjoyment of his own property.

Two other points are taken, namely, (i) in case of a composite lease, i.e., premises let for residential as well as non-residential purposes, the Legislatuie has not in section 12 (6) (b) provided any measure for calculating the compensation payable; and since the contract of tenancy is one and indivisible, and the tenancy cannot be split up and, therefore, the Court cannot apportion the rent between the residential and the non-residential portions, inasmuch as the stipulated rent is one for the entire leased premises, and (ii) the need of a person u/s 12 (1) (e) or (f) of the Act has to be the need of one who is a resident of the city or town concerned where the accommodation is situate, and no outsider, i.e., a non-resident, can take benefit of these provisions. The contentions can easily be disposed of.

The point regarding the inexecutability of the decree by reason of section 12 (6) (b) of the Act does not arise for two reasons. In the first place, section 12 (6) of the Act relates to a stage after the passing of a decree u/s 12 (1) (f) of the Act. In Hamid Arab ( Smt. Radha Devi Sharma Vs. Union of India (UOI) and Others, I had taken the view that:

The provision creates no bar against the passing of a decree on the ground mentioned u/s 12 (1) (f) but creates an impediment to the execution of such decree unless certain conditions are fulfilled. In other words, the provision contained in section 12 (6) relates to post-decree matters which arise upon its execution. The opening words of the provision clearly restrict the operation of the provision to a stage subsequent to the passing of a decree.

Perhaps that view was correct because the Supreme Court declined to grant special leave. In the second place, the provision for payment of compensation to the tenant evicted u/s 12 (1) (f) of the Act, comes into play when such accommodation is situate in cities of Gwalior (including Lashkar and Morar), Indore, Ujjain, Ratlam, Bhopal, Jabalpur, Raipur or Durg or such other towns or cities specified by the State Government by a notification in that behalf. The State Government has so far issued no notification in regard to other towns. That being so, the provision in section 12 (6) (b) of the Act is not applicable at all to the instant case.

The provision for payment of compensation to tenants evicted from non-residential premises, is confined to the larger cities for valid reasons. Where such tenants on being evicted, they are put to substantial loss resulting from disruption of their business from premises from where they have earned goodwill and reputation in the market, by dint of their exertion. The Legislature by making the provision for payment of compensation, tries to balance the interest of the landlord against that of the tenant. While the bona fide need of the landlord must prevail, he must in such a case, indemnify the tenant to a certain extent against the loss sustained by him. Presumably, the paucity of non-residential accommodation in smaller towns is not so acute.

It would be a fallacy to suggest that the provisions of clauses (e) and (f) of sub-section (1) of section 12 of the Act were meant for the benefit of landlords, who are residents of the city or town where the accommodation is situate. The provisions have been enacted for the benefit of the ''landlord'' which means the lessor, irrespective of whether he is a resident of the city or town concerned or not. Non-resident landlords are, therefore, not deprived of the right to get tenants evicted from residential as well as non-residemial premises, where they are in bona fide requirement of such premises. There is no reason why a person who owns a residential or non-residential accommodation should not get the same for his own use, merely because he is residing outside the city or town. The Act makes no such classification and in my view, there is no warrant for limiting the provisions of section 12 (1) (e) and (f) of the Madhya Pradesh Accommodation Control Act, 1961, in the manner suggested.

The result, therefore, is that the appeal fails and is dismissed with costs. Counsel''s fee as per schedule, if certified.